01 May, 2010
The procedure the officer must follow when arresting me. We were looking at our fundamental right in
Anguilla to personal liberty guaranteed by section 3 of the Anguilla Constitution 1982, and the power of the police to arrest us as an exception to this right. At this point it might be useful to recall the proper procedure to be followed during the arrest.
An arrest which would otherwise be lawful will be unlawful if the arresting officer neglects to follow the proper procedure during the arrest. An arresting officer who fails to observe the required procedure may be liable for false imprisonment. The government, and sometimes, if he was particularly badly behaved, the officer himself personally, may be made to pay damages. The following are some of our most important common law rules that supplement or explain the constitutional protection of our right to personal liberty.
First, the rule is that the arrested person must be informed that he is under arrest, and he must be informed of the true ground for the arrest either at the time of the arrest or as soon as practicable afterwards. The rule was originally established at common law by the leading case in 1947 of Christie v Leachinsky, but it is now a constitutional rule.
So, it is provided by subsection (2) to the same section 3 of the Constitution, that any person who is arrested or detained shall be informed orally and in writing as soon as reasonably practicable, in a language which he understands, of the reasons for his arrest or detention.
The common law which has developed since Christie's 1947 case remains useful for an understanding of the proper application of the rule. So, it has been held that the purpose of the constitutional right of every citizen to know why he is being detained is so that he will be in a position to know whether he is entitled to resist the arrest. A person who is being unlawfully arrested has the right to resist. If John Smith, a young man who is peacefully liming on the street corner, is approached by a police officer who holds on to him and says, “John Smith, come with me. I am taking you to the Station. The Sergeant wants to speak to you about wounding Mary Jones last week”, that young man is entitled to pull away and to say, “Do not put your hands on me again, or I will sue you for assault.” What the officer has to say is something like, “John Smith, I am arresting you for the offence of wounding Mary Jones”. That would be a lawful way to seize hold of John Smith and take him to the station. It is not necessary for the ground of arrest to be expressed in precise technical language. It is sufficient if the arresting officer conveys to the arrestee the substance of the alleged offence.
The rule that the person arrested is entitled to be told the reason for the arrest does not apply in two circumstances. The first is, where the arrestee must be taken to have been aware of the reason for the arrest, for example where he is caught 'red handed' in the commission of an offence. The second is, where the arrestee made it impossible for him to be told the reason for the arrest by counter-attacking or running away. Of course, if you know that you are being wrongfully arrested, it might be a very dangerous thing for you to resist. You may get injured, if the police officer has lost his self-control. It is much better to permit yourself to be illegally detained, and then to instruct a lawyer to sue for the insult and the injury done to you.